Anti-Diskriminierung

Niemand darf wegen seines Geschlechtes, seiner Abstammung, seiner Rasse, seiner Sprache, seiner Heimat und Herkunft, seines Glaubens, seiner religiösen oder politischen Anschauungen benachteiligt oder bevorzugt werden. Niemand darf wegen seiner Behinderung benachteiligt werden. (Art. 3 Abs. 3 GG)

Das amerikanische Arbeitsrecht geht noch ein ganzes Stück weiter und verbietet darüber hinaus Diskriminierung aufgrund von (explizit) Hautfarbe, Schwangerschaft, Alter, Staatsbürgerschaftsstatus, Genetischer Information sowie Wehrstatus. Wobei Bundesstaaten oder sogar kommunale Jurisdiktionen noch weitere Anti-Diskriminierungs-Regeln erlassen können.

Unsere payroll-company hat mir heute einen Leitfaden geschickt, wie man sicherstellt, daß man nicht etwa im Vorstellungsgespräch jemanden direkt oder indirekt, absichtlich oder versehentlich als Mitglied einer geschützten Gruppe identifiziert (denn das wird schon als Diskriminierung gewertet).

Nachfolgend die guidelines – copy/paste, unredigiert (cross my heart and hope to die). Kommentare zu diesem Schwachsinn spare ich mir.

Wobei, eine Anmerkung kann ich mir nicht verkneifen: als wir im letzten Jahr für einen Mitarbeiter die Verlängerung seines Visums beantragten, mußten wir unter anderem nachweisen, daß wir keinen U.S. Citizen finden, der diesem Jobprofil genügt. Nach Vorlage der Stellenbeschreibung hat uns der Anwalt dringend geraten, die Anforderungen massiv zu reduzieren, da wir sonst in den Verdacht geraten könnten, amerikanische Bewerber bewußt zu diskriminieren.

Federal law protects employees and job applicants from discrimination on the basis of race, color, religion, sex, national origin, pregnancy, age, citizenship status, disability, genetic information, and military status. State and local jurisdictions may also protect individuals from discrimination on the basis of additional characteristics.

Due to these protections, it’s extremely important to ensure interview and other pre-employment questioning does not directly or indirectly identify an applicant as a member of a protected group. The following are eight types of questions to avoid during the pre-employment process, as well as some potential alternatives:

Age. The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against applicants and employees 40 years of age or older.

Avoid: What’s your age? What year did you graduate high school? While the ADEA does not specifically prohibit an employer from asking an applicant’s age, the Equal Employment Opportunity Commission (EEOC) may closely scrutinize requests for such information to ensure that the inquiry was made for a lawful purpose.

Alternative: If there are minimum age requirements for a job, you may state them and ask whether the applicant meets those requirements.

National origin. Employers with 15 or more employees are prohibited from discriminating against applicants and employees on the basis of national origin (i.e., based on where the individual was born or because of their ethnicity or accent).

Avoid: Where were you born? Where did you grow up? What’s the origin of your name? These questions are problematic because they may reveal information about an applicant’s origin.

Alternative: “Are you authorized to work in the United States?” If this question is asked, it should be asked of all applicants. Note: Employers may only hire individuals that are authorized to work in the United States. Questions regarding work authorization are typically included in an employment application and later verified during the hiring process when the employee completes an I-9 form.

Disability. Under the Americans with Disabilities Act (ADA), as amended, employers are prohibited from discriminating against applicants and employees on the basis of disability. The ADA also requires that employers provide a reasonable accommodation to applicants and employees with disabilities, absent undue hardship.

Avoid: Do you have a disability? How many sick days did you use last year? The ADA expressly prohibits employers from asking medical questions or inquiring about disabilities during interviews. Employers are permitted to ask limited questions pertaining to a reasonable accommodation if they believe that the applicant may need accommodation because of an obvious or voluntarily disclosed disability, or where the applicant has disclosed a need for accommodation. However, asking any questions about the nature or severity of the disability is prohibited.

Alternative: State the essential functions of the job and ask applicants if they can perform those duties either with or without a reasonable accommodation.

Military service. Under the Uniform Services Employment and Reemployment Act (USERRA) employers are, among other things, prohibited from discriminating against individuals due to past, present, or future membership in the uniformed services.

Avoid: Do you have military obligations that would require you to miss work? Do you have military duties on weekends? Questions about an applicant’s military obligations, including past and future membership, should be avoided.

Alternative: If an applicant voluntarily discloses he or she has served in the military (e.g. on a resume), you may ask questions regarding relevant job-related skills acquired during their service.

Family status. While one’s family and/or marital status are not expressly protected under federal nondiscrimination laws, sex and pregnancy are protected characteristics. Questions that disproportionately affect these groups should be avoided.

Avoid: Are you married? Are you pregnant? Do you have children? What are your child care arrangements? Even if asked of both men and women, employers should avoid non job-related questions involving marital status, number and/or ages of children or dependents, or names of spouses or children. If family-related information is needed for insurance or other legitimate business purposes, these inquiries may be made after an employment offer has been extended and accepted.

Alternative: You may state the requirements relating to regular work hours, overtime, and travel and ask whether they can meet those requirements. Again, if this question is asked, it should be asked of all applicants.

Physical attributes. A number of state and local jurisdictions specifically prohibit discrimination on the basis of physical appearance, including one’s height and weight.  Furthermore, the Equal Employment Opportunity Commission (EEOC) indicates that height and weight requirements tend to disproportionately limit the employment opportunities of certain protected groups.

Avoid: What is your height? How much do you weigh? Because these questions are not job-related and may limit employment opportunities for certain protected groups, they should be avoided, unless certain physical attributes are a bona fide occupational qualification (BFOQ).

Alternative: If the job has certain physical demands, you may state them and ask whether applicants can meet those requirements. For example, “this job requires that the employee regularly lift 30 pounds. Are you able to do so?” Additionally, if a legitimate BFOQ applies (e.g., weight requirements for police officers or firefighters), then related questions may be acceptable.

Religion. Employers are prohibited from discriminating against individuals on the basis of religion. This includes religious beliefs (both traditional as well as non-traditional) and religious practices (e.g., attending religious services, praying, or wearing religious garb).

Avoid: What religion do you practice? Can you work Friday evenings? Saturdays? Sundays? Generally, questions that tend to elicit information about religious beliefs and practices are off limits.

Alternative: If you want to confirm an applicant is able to work the hours required for the job, state the regular days, hours, or shifts for the job and ask whether the candidate can work such a schedule. Note: You may be required to reasonably accommodate an employee’s religious beliefs or practices. This means you may have to make reasonable adjustments to allow the employee to practice his or her religion, such as allowing an employee to voluntarily swap shifts with a co- worker so that they can attend religious services.

Arrest record. Several state laws limit the use of arrest and conviction records by prospective employers. These range from laws and rules that prohibit asking applicants about arrest records to those restricting the use of certain conviction data when making employment decisions.

Avoid: Have you ever been arrested? Questions about arrests are problematic because an arrest in itself isn’t a reliable indicator of guilt and such inquiries may have a disproportionate effect on some protected groups. Check your state law and consult legal counsel before asking these types of questions.

Alternative: The EEOC’s recommendation is that even where permitted, inquiries about arrests should be limited to arrests relating to the position in question.

Employers should remember to ask only job-related questions during interviews, ask the same core set of questions of all applicants interviewed for a particular job, and avoid questions that would directly or indirectly identify an applicant as a member of a group that is protected by federal, state, and local nondiscrimination laws.